One step at a time
In the final part of a three-part series on the involvement of residents in the licensing regime, Richard Brown looks at hearings, appeals and costs.
Determination of applications
Unless relevant representations are made, a licensing authority will be required to grant the licence/certificate in the terms sought, which for applications for a new licence/certificate is subject only to such conditions as are consistent with the operating schedule accompanying the application and certain mandatory conditions. Again, there are proposals to alter this requirement in the current Home Office consultation.
The Sub-Committee hearing
If the licensing authority considers that a representation is relevant and not vexatious or frivolous, its discretion is engaged. A hearing should be held within 20 working days beginning with the day after the last day for representations. The licensing authority will write to those who made relevant representations to inform them of the date of the hearing. The notice must inform interested parties of their right to appear and be represented.
The Licensing Act 2003 (Hearings) Regulations 2005 require interested parties to give notice no later than five working days before the hearing whether they will attend, whether they will be represented and whether they think a hearing is necessary at all. Hearings are held in public.
After an interested party has submitted a representation, fresh evidence can be admitted. This should be done as soon as possible, and preferably before the licensing officer draws up the papers to go before the Sub-Committee. Any documentation submitted on the day of the hearing can only be taken into account with the consent of all the other parties.
Prior to the hearing, a mediation meeting may be useful to see if a position can be agreed, or conditions agreed should the Sub-Committee be minded to grant. It may be in many cases that the addition or conditions or a watering down of the application may resolve any differences. However, getting the agreement of numerous interested parties is often difficult.
In the spirit of a partnership approach, residents should try to think of conditions which may satisfy them should the application be granted, or granted in a modified form, even if they oppose the grant totally.
It is important for interested parties to attend at hearings if possible, although their representations should still be taken into account either way.
The Sub-Committee is comprised of three councillors drawn from the 10-15 councillors who make up the Licensing Committee. At the hearing, an interested party may address the Sub-Committee and amplify their representation. The hearings take the form of a discussion led by the authority. The extent to which it is a discussion varies. At some authorities the hearings are quite informal.
The decision must be given within five working days of the hearing, although many authorities give their determination on the day, and a written formal decision at a later date. It is open to the Sub-Committee to:
- Grant or vary the licence or certificate (as appropriate)
- Refuse to grant or vary
- Grant or vary in part, including modifying conditions if necessary
- Exclude licensable activities from the licence or certificate
Conditions imposed should not merely replicate what is on the operating schedule or duplicate existing legislative provisions (R (Bristol City Council) v Bristol Magistrates’ Court and Somerfield Stores Ltd [2009] EWHC 625 (Admin)). Conditions must be focused on measures within the direct control of the licence holder.
Appeals against decisions of licensing authorities
Notice of the decision which is sent out to interested parties must contain information on the right of appeal. An interested party has the right of appeal against a decision of the licensing authority. Appeals are made to the Magistrates’ Court for the petty sessions area in which the premises is situated and is commenced by notice of appeal given by the Appellant to the justices’ chief executive for the magistrates’ court within 21 days beginning on the day on which the appellant was notified (in writing) by the licensing authority of the decision appealed against.
Where an interested party appeals against a decision of the licensing authority, the holder of the premises licence is a respondent in addition to the licensing authority (Schd 5 (9)(3)). Does a corresponding right exist for an interested party? The recent High Court case R(oao The Chief Constable of Nottinghamshire Police) v Nottingham Magistrates’ Court and Tesco Stores Limited has now clarified the matter somewhat. The High Court decided that there was no express or implied right for an interested party or responsible authority to appear or be represented on appeal. On the question of whether the Magistrates have the power to permit responsible authorities or interested parties to appear, the High Court said that it was for the Magistrates’ Court to decide how best to achieve the objective with which he is charged. The matter was remitted back to the Magistrates’ Court to determine on those terms whether to permit the police to be a party.
The hurdle which must be crossed on an appeal is tough. Current case law suggests that the appeal is by way of rehearing and that the Magistrates ‘stand in the shoes’ of the licensing authority and must be satisfied that the Sub-Committee decision was ‘wrong’, not merely that it was ‘not right’ (subject of a preliminary ruling by the District Judge who heard the ‘Endurance’ case and confirmed by Burton LJ, following the approach taken in Sagnata Investments Ltd v Norwich Corporation [1971] 2QB 614.) Thus, the Magistrates may well consider that they would have made a different decision to the Sub-Committee, on the evidence before them. However, unless they are persuaded that the decision of the Sub-Committee is actually wrong, or right at the time it was made but wrong now, the appeal is still liable to be refused. The Sagnata point is being appealed to the High Court in a case which may have far-reaching implications for local authority decision-making.
One problem for residents who have achieved a successful outcome on a s51 review is that if the decision is appealed, the decision of the Sub-Committee is stayed pending the outcome of the appeal. Appeals can take anything up to six months to be heard, during which time the premises can remain trading under the same terms as previously. The Home Office are consulting on a proposal that the decision of the licensing authority on review comes into effect immediately upon notification of the decision.
Costs are often a worry to residents who wish to appeal a decision. It does not necessarily follow that costs follow the event in these hearings and awarding costs against a local resident is the exception rather than the rule, but it has happened (eg Barrington v North Dorset District Council [2008] LLR 17). If local residents have a cogent, arguable case the Magistrates’ Court would think carefully before awarding costs against a residents even if the appeal is refused. A recent case even ratified the award of costs against a successful Appellant (Prasanna v Royal Borough of Kensington and Chelsea [2010] EWHC 319 (Admin)).
It is also possible to challenge a local authority decision in the High Court by judicial review, and to challenge Magistrates’ Court decisions in the High Court by judicial review or by case stated. Specialist legal advice should be sought before commencing any appeal.
Richard Brown is a solicitor who manages the Westminster Licensing Advice Project. The project is funded by Westminster City Council and provided by Westminster Citizens Advice and advises residents on their rights and responsibilities under Licensing Act 2003 and related legislation.
Part one, explaining how residents can get involved in shaping the night-time economy in their communities, can be downloaded here.
Part two, looking at how residents can engage in the Licensing Act regime and the information that should go into their representations, can be downloaded here.
